Ardimulam (Pillay) Pillay v Capitol Radiology Pty Ltd T/A Capitol Radiology

[2013] FWC 2754

[2013] FWC 2754

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ardimulam (Pillay) Pillay
v
Capitol Radiology Pty Ltd T/A Capitol Radiology
(U2012/17180)

COMMISSIONER JONES MELBOURNE, 8 MAY 2013

Extension of time granted.

Introduction

[1] On 29 December 2012, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by the Health Services Union (HSU) on behalf of Mr Ardimulam Pillay (the Applicant).

[2] The Applicant was given notice of his dismissal on 14 December 2012. The application was made on 29 December 2012. Consequently the application was made 15 days after the dismissal took effect.

[3] At the relevant time, ss.394(2) of the Act then provided that an application for an unfair dismissal remedy must be made within 14 days after the dismissal took effect or within such further period as the Fair Work Commission (the Commission) allows under subsection 394(3).

[4] Section 394(3) of the Act provides:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[5] S.394(3) empowers the Commission to allow a further period for an application to be made. This discretion is enlivened only where the Commission is satisfied, taking into account sub-paragraphs (a) to (f), that exceptional circumstances exist. Once satisfied, the Commission may exercise its discretion to allow a further period having regard to all the circumstances including, in particular the matters specified in s.394(3)(a) to (f) and whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 1

[6] The Applicant submits that although the application was lodged out of time a further period should be allowed on the following grounds:

(a) The Application was lodged in Fair Work Commission by the Applicant’s union, the HSU one day late;

(b) The delay was occasioned by representative error consequent upon a unique set of circumstances (set out below);

(c) The Applicant took active steps at all times to contest his dismissal;

(d) There is no prejudice to the employer;

(e) The Applicant has a reasonable basis to challenge the dismissal as the reason for dismissal did not justify dismissal and there were serious deficiencies in the procedures adopted by Capitol Radiology Pty Ltd T/A Capitol Radiology (the Respondent); and

(f) Having regard to all the relevant factors, there are exceptional circumstances which warrant an extension of time.

[7] The Respondent advised the Commission on 10 April 2013 that they do not oppose an extension of time to allow the Applicant to lodge his application and would not be filing submissions nor attend a hearing. Both parties have agreed that the question of whether an extension of time should be allowed to be determined on the papers. In these circumstances I have adopted this course. I note that my consideration of this matter is based on the best evidence available; namely, a sworn witness statement of Ms Leigh Svendsen, National Industrial Officer, HSU.

S.394(2) and Exceptional Circumstances

[8] The meaning of exceptional circumstances and the relevance of representative error in determining whether exceptional circumstances exist has been considered by Full Benches of the Commission in relation to s.366(2) of the Act. The opening words of s.366(2) provide for the Commission to allow a further period for an application under s.365 of the Act where it is satisfied there are exceptional circumstances taking into account particular matters, including ‘(a) the reason for the delay’.

[9] In Nulty v Blue Star Group Pty Ltd 2the Full Bench set out extracts from various authorities in which the meaning of ‘exceptional circumstances’ had been considered and stated:

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. 3

[10] In Robinson v Interstate Transport Pty Ltd, 4 the Full Bench held that representative error, in circumstances where the Applicant was blameless, would constitute exceptional circumstances under s.366(2) of the Act, subject to consideration of the matters specified in ss.366(2)(b) to (e) of the Act.5 The Full Bench held that the approach enunciated in Clark v Ringwood Private Hospital6regarding representative error in the context of a decision to extend time, whilst made under previous legislation, continued to provide appropriate guidance under s.366(2). The Full Bench set out an extract of a summary of that approach from another Full Bench decision:7

[25] The approach in Clark’s Case was summarised in Davidson’s Case as follows:

“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carryout those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.”

Reasons for Delay

[11] Ms Svendsen’s evidence, which I accept, is that the Applicant, who was employed as a registered Radiographer, was a member of the HSU, Victorian Number 3 Branch (the Branch). This followed the placing of the HSU East Branch into administration in 2012 and the separation of previously merged branches into their constituent parts. Ms Svendsen commenced employment as a National Industrial Officer at the HSU whose national office is located in Sydney. This involved relocation from Melbourne to Sydney.

[12] Relevantly the following events occurred affecting the efficient running of the Branch:

(a) With the demerger of HSU, all elected officers and committee members were dismissed;

(b) Elections occurred in November 2012, the result of which was the election of new officers and committee members to the Branch;

(c) Within three weeks of the election, all staff previously employed at the branch had left. The business of the Branch was managed by a mix of volunteers, casuals and the new elected Secretary with assistance from Ms Svendsen; and

(d) The disruption occasioned by these events affected all information technology and communication, including access to member records and files at the Branch.

[13] Ms Svendsen met with the Applicant on 17 December 2012 and he instructed the HSU to file an unfair dismissal remedy application. She requested further information from the Applicant which was provided by the end of the week (21 December 2012). Given the circumstances in the office, Ms Svendsen decided that she should manage the task of filing the application. She states that apparently simple matters, such as the payment of the filing fee, remained unresolved.

[14] On 21 December 2012, the National Office closed for the Christmas break and from 24 December 2012 to 2 January 2013, the Branch was closed. Ms Svendsen states that in the two weeks after 21 December 2012, she was preoccupied with managing her relocation to Sydney, including assisting her aged parents change residences. She concedes she forgot to lodge the application on behalf of the Applicant until Saturday, 29 December 2012. This resulted in the application being one day late.

[15] I am satisfied that the reason for the application being lodged one day out of time is due to a combination of:

(a) The impact of the placing of HSU East into administration, the election of Officers of the Branch and subsequent absence of a functioning Branch during the relevant period to efficiently manage the Applicant’s application;

(b) The work and personal circumstances affecting the National Industrial Officer who assumed responsibility for filing the application; and

(c) Representative error.

[16] In circumstances referred to at [11] to [15] above, I am satisfied that there were exceptional circumstances, resulting in the delay of the application.

Applicant’s Awareness of Dismissal Taking Effect

[17] It appears the Applicant was notified verbally of his dismissal on 14 December 2012.

Action to Dispute the Dismissal

[18] As noted earlier, the Applicant contacted his union on 17 December 2012, met with Ms Svendsen the following day and instructed her to file an unfair dismissal remedy action on his behalf. He forwarded information requested by Ms Svendsen by 21 December 2012.

[19] Ms Svendsen’s evidence, which I accept, is that the branch received calls and/or information each day until its closure for the Christmas break. Further, there were several emails between the Applicant and Ms Svendsen during the week commencing 17 December 2012, including confirmation by the Applicant of the contents of the draft application for unfair dismissal remedy.

[20] Having regard to the evidence, I am satisfied that the Applicant took all steps available to pursue his application and its progress until the closure of the Branch on 24 December 2012 and the National Office on 21 December 2012 for the Christmas break.

Prejudice to the Employer

[21] No prejudice is claimed by the Employer and I am satisfied that a delay of one day in making an application does not operate in a manner which prejudices the employer.

Merits of the Application

[22] The Applicant submits that he has a reasonable case on the basis that:

(a) The grounds specified for dismissal, that the Applicant was unhelpful to a patient, did not justify dismissal;

(b) Previous warnings issued to the Applicant were specious and given in the context where the Applicant was denied procedural fairness; and

(c) The manner of and circumstances surrounding the dismissal lacked procedural fairness.

[23] No Submissions were made by the Respondent regarding the merits.

[24] In the circumstances, I am satisfied that the Applicant’s case is not without merit and I regard this issue as neutral in my consideration.

Fairness

[25] I am satisfied that having regard to the reasons for delay dealt with in [11] to [15], and the delay is one day, allowing a further period would not operate unfairly.

Conclusion

[26] The reason for the delay of one day in the filing of the Applicant’s application for unfair dismissal remedy is representative error.

[27] I am satisfied that the circumstances surrounding representative error are out of the ordinary course, unusual or special and are therefore exceptional. Moreover, I am satisfied that in this case the Applicant is blameless and took active steps regarding the progress of his claim. Having regard to these factors and taking into account the evidence and findings in relation to each of the matters specified in ss.394(2), I find that there are exceptional circumstances. I am further satisfied having regard to all the circumstances, including the matters specified in s.394(2), that it is fair and equitable to allow a further period of time within which the Applicant may lodge her application. Accordingly, I exercise my discretion pursuant to s.394(2) and allow a further period of one day.

[28] The application will now be listed for determination of merits.

COMMISSIONER

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975

 2   Ibid

 3   Ibid at [13]

 4   [2011] FWAFB 2728

 5   Ibid at [24]

 6 (1997) 74 IR 413

 7   Davidson v Aboriginal & Islander Child Care Agency, PRQ0784

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